Gestational parents, non-genetic mothers, siblings with different mothers: family law in a quandary

Orig.src_.Susanne.Posel_.Daily_.News-dna_baby_wombG (Children), Re [2014] EWCA Civ 336 (25 March 2014) – read judgment

This interesting family dispute demonstrates the tension between legal parenthood and biological parenthood in times when both legislation and common law are struggling to keep up with the possibilities offered by reproductive medicine; where a child can be born with no biological relationship with its gestational parent, or, conversely, where children can be borne of two separate mothers and yet be full genetic siblings.

Background

The appellant and respondent had been in a lesbian relationship for some years.  Following unsuccessful attempts by the respondent to conceive using her own eggs, the appellant agreed to donate eggs so that the respondent could become pregnant. She donated eggs which were fertilised with sperm from an anonymous donor. The embryos were implanted in the respondent who carried and gave birth to the twins. Continue reading

Anonymity Part 2: Child personal injury cases

Mr-Justice-Tugendhat-15_150JXMX (A Child) v Dartford and Gravesham NHS Trust  [2013] EWHC 3956 (QB) – read judgment

Elizabeth-Anne Gumbel QC of 1 Crown Office Row represented the claimant in this case. She has nothing to do with the writing of this post.

In Part 1 on this subject, I discussed medical confidentiality and/or legal restrictions designed to protect the privacy of a mother and child. This case raises the question in a slightly different guise, namely whether the court should make an order that the claimant be identified by letters of the alphabet, and whether there should be other derogations from open justice in the guise of an anonymity order, in a claim for personal injuries by a child or protected party which comes before the court for the approval of a settlement. Continue reading

Denial of contact with father too “draconian” – Court of Appeal

Father-and-child-holding--006M (Children) [2013] EWCA Civ 1147,  20 September 2013 – read judgement

The Court of Appeal has taken the unusual step of reversing a denial of contact order, by reviewing the question of the proportionality of the order in relation to the children’s right to family life under  Article 8.

The appellant father appealed against the refusal of his application for contact with his three young sons. He had a history of violence and previous criminal convictions all but one of which, though distant in time, related to violent behaviour, including causing grievous bodily harm with intent. Following repeated episodes of abuse, which was often witnessed by the boys, the mother had left the family home with the children and had taken up accommodation in a women’s refuge.  She voiced fears of their abduction out of the jurisdiction and her own personal safety to the extent of “honour based” violence and death at the hands or instigation of the father.  When he applied for contact Cushing J found that the father had minimised his behaviour and blamed the mother as the victim of his violence. She concluded that he had failed to show any lasting benefit from therapy and his behaviour was likely to destabilise the children’s home and security, which was provided by the mother. Continue reading

Supreme Court considers conditions for removing child for adoption

mother-and-child_1681173cIn the matter of B (a child) (FC) [2013] UKSC 33 – read judgment

This appeal concerned whether a child of two years of age should be permanently removed from her parents and placed for adoption; and, in that regard, whether the child was likely to suffer “significant harm: within the meaning of s.31(2)(a) of the Children Act 1989; and a consideration of whether her permanent removal might interfere with the exercise of the right to respect for family life under Article 8 of the ECHR, and, if so, whether the order  should be proportionate to its legitimate aim of protecting the child.

The following summary is based on the Supreme Court press report. References in square brackets are to paragraphs of the judgment.

Background facts

The child concerned had been removed from her parents at birth under an interim care order. The mother was for many years in an abusive relationship with her step-father. She also had criminal convictions for dishonesty and a history of making false allegations. She had been diagnosed with somatisation disorder, a condition which involves making multiple complaints to medical professionals of symptoms for which no adequate physical explanation can be found. Continue reading

Genetic testing of children up for adoption

12280487228O6zG0Y and Z (Children), 25 April 2013 [2013] EWHC 953 (Fam) – read judgment

Having children is a lottery. No judge or court in the land would sanction the regulation of childbearing, however feckless  the parents, unsuitable the conditions for childrearing, or unpromising the genetic inheritance.

Adoption on the other hand is stringently regulated, set about with obstacles for prospective parents, and strictly scrutinised by an army of authorities backed up by specialist family courts and a battery of laws, statutory instruments and guidance papers. Usually the filtering is in one direction only: the suitability of the parents to the child or children up for adoption. But sometimes it goes the other way, and this case raises the fascinating and somewhat futuristic question of whether children’s chance of finding a suitable home might be increased by genetic testing.

The circumstances were somewhat exceptional here, since the local authority had ascertained from the biological father  of the two young boys in question that they might have a chance of inheriting a rare genetic disorder of the central nervous system. Huntington’s Chorea is caused by a single gene mutation on chromosome IV and causes damage of the nerve cells and areas of the brain which in due course leads to severe physical, mental and emotional deterioration. Anyone whose parent has the disease is born with a fifty per cent chance of inheriting the gene. Anyone who inherits the gene will, at some stage, develop the disease.  Continue reading

How can the courts manage the Facebook phenomenon?

Facebook-from-the-GuardianHL (A Minor) v Facebook Incorporated, The Northern Health and Social Care Trust, The Department of Justice for Northern Ireland and others  [2013] NIQB 25 (1 March 2013) – read judgment

In this somewhat chaotic action, the Plaintiff sued ten defendants, in anonymised form by her father and next friend.

The Writ stated that the Plaintiff, aged 12,  had been engaged in posting and uploading sexually suggestive and inappropriate photographic images of herself onto Facebook, and that she had been doing so vis-à-vis several different accounts with differing profile names. She had been involved with the social services from the age of 11. From July 2012 to January 2013 she was the subject of a Secure Accommodation Order. She currently resides in a specialised unit, is a grade below secure accommodation.

This was clearly a bid by the father to bring his wayward daughter under control by restricting her access to the internet.

Continue reading

Enforcement of custody in the face of children’s dissent: should law prevail?

Father-and-child-holding--006Raw and others v France – read judgment (only available in French)

This complicated inter-jurisdictional battle between estranged parents is a stark illustration of how difficult it can be in these sorts of cases to apply the law in the fog of family warfare.

Even though the mother’s case was upheld in the Strasbourg Court, one can tell from the modesty of the damages awarded and the strength of the minority opinions that the judges were extremely reluctant to apply hard letter law to the complicated case before them. Indeed in one partially concurring judgment, Judge Nussberger found it distinctly odd that the mother was able to join the children as parties, in the light of their opposition to her wish that they leave their father to join her. Continue reading

Disclosure of ill-treatment allegations would breach nurse’s human rights, rules High Court

nursing-homeR (on the application of A) v the Chief Constable of Kent Constabulary [2013] EWHC 424 (Admin) – read judgment

This was an application for judicial review, and a claim under the Human Rights Act 1998, in respect of the defendant’s decision to disclose allegations of neglect and ill-treatment of care home residents in an Enhanced Criminal Records Certificate dated 12th October 2012.

Background

In August 2012, the defendant received a request from the Criminal Records Bureau  for an enhanced check to be made in respect of the Claimant concerning her proposed employment by Nightingales 24 7 as a registered nurse. The information related to the alleged mistreatment of several elderly and vulnerable adults resident in the care home in which [A] worked as a Registered General Nurse.  The allegations were made by the residents and the health care workers in the charge of A, a registered nurse who qualified in Nigeria. She claimed that these allegations had been made maliciously because the health care assistants resented the way in which she managed them. She also claimed that some of the allegations were motivated by racism. Continue reading

Judge strikes down Facebook page “Keeping our Kids Safe From Predators”

Facebook-from-the-GuardianX v Facebook Ireland Ltd [2012]   NIQB 96 (30 November 2012)   - read judgment

This fascinating case comes to light in the midst of general astonishment at the minimal attention paid in the Leveson Report to the  “wild west” of the internet and the question of social media regulation.

This short  judgement demonstrates that a careful step by step judicial approach – with the cooperation of the defendant of course – may be the route to a range of common law tools that protect individuals from the internet’s incursions in a way which no rigidly formulated statute is capable of doing. As the judge observed mildly,

The law develops incrementally and, as it does so, parallels may foreseeably materialise in factually different contexts.

Background to the case

The plaintiff  (XY) sought an injunction requiring Facebook to remove from its site the page entitled “Keeping Our Kids Safe from Predators”, alternatively requiring Facebook to monitor the contents of the aforementioned page in order to prevent recurrence of publication of any further material relating to the Plaintiff and to remove such content from publication forthwith.  Continue reading

High Court calls for joined-up thinking on disclosure of sex offender information

X (South Yorkshire) v Secretary of State for the Home Department and Chief Constable of Yorkshire  [2012] EWHC 2954 (Admin)- read judgment

The High Court has made an important ruling about the disclosure of information under the Child Sex Offender  Disclosure Scheme (CSOD).

This non statutory arrangement has been in place since March 2010. It  allows members of the public to seek details from the police of a person who has some form of contact with children with a view to ascertaining whether that person has had convictions for sexual offences against children or whether there is other “relevant information” about them which ought to be made available. This request could come from any third party such as a grandparent, neighbour or friend. The  aim of the scheme is described thus:

This is to ensure any safeguarding concerns are thoroughly investigated. A third party making an application would not necessarily receive disclosure as a more appropriate person to receive disclosure may be a parent, guardian or carer.  In the event that the subject has convictions for sexual offences against children, poses a risk of causing harm to the child concerned and disclosure is necessary to protect the child, there is a presumption that this information will be disclosed.

Anya Proops’ post on the Panopticon blog sets out a clear summary and analysis of the ruling by the President of the Queen’s Bench Division and Hickinbottom J. Here are a few more details about the judgment. Continue reading

Government should have consulted Child Poverty Commission on welfare strategy

Child Poverty Action Group, R (on the application of) v Secretary of State for Work and Pensions [2012] EWHC 2579 (Admin) (17 July 2012) – read judgment

The High Court has ruled that the government acted unlawfully by removing the Child Poverty Commission, an advisory body set up under the Child Poverty Act 2010 . They had also acted beyond their powers by preparing a child poverty strategy without having requested and having regard to the advice of that Commission. But government is free to formulate new policy and as such there was nothing irrational about the strategy itself.

There is of necessity a great deal of statutory construction in this judgment which makes for dry reading. But the ruling is an important reassessment of the principles of judicial review that have taken root since the power of the courts to intervene in government decision making was reinforced in Anisminic Ltd v Foreign Compensation Commission [1969] 2 A.C. 147. This ruling, as every law student knows, established that a public body acts unlawfully, both in the narrow sense of acting outside its jurisdiction, and where such jurisdiction was wrongly exercised. This means that courts may intervene not just where a governmental act is unlawful under an express provision of the statute but also where the decision or policy, although authorised by statute, has been made in breach of a rule of public law. Continue reading

Interests of children should not prevent extradition for serious offences

HH (Appellant) v Deputy Prosecutor of the Italian Republic, Genoa (Respondent); PH (Appellant) v Deputy Prosecutor of the Italian Republic, Genoa (Respondent) [2012] UKSC 25 - read judgment

These appeals concern requests for extradition in the form of European Arrest Warrants (EAWs) issued, in the joined cases of HH and PH, by the Italian courts, and in the case of FK, a Polish court. The issue in all three was whether extradition would be incompatible with the rights of the appellants’ children to respect for private and family life under Article 8 of the ECHR.

Put very briefly, HH and PH had been arrested in Italy on suspicion of drug trafficking. They left Italy in breach of their bail conditions and went to the United Kingdom. They were convicted in their absence. European arrest warrants were later issued. They challenged their extradition on the basis of the effect that it would have on their three children, the youngest of whom was 3 years old.

FK was accused of offences of dishonesty alleged to have occurred in 2000 and 2001. She had left Poland for the UK in 2002 and European arrest warrants had been issued in 2006 and 2007. F had five children, the youngest of whom were aged eight and three. She has not been tried or convicted of the alleged offences yet. Continue reading

European Court to discipline UK for smacking children [updated]

ban on children being smacked human rightsA number of newspapers reported yesterday that the Council of Europe, is to criticise the UK for failing to introduce a total ban on smacking children. The coverage splits along predictable lines, with the Daily Express and The Star both referring to “meddling” bureaucrats telling British parents what to do with their children.

The foreshadowed comments will apparently come in a debate to be held later today on “The smacking ban 30 years on: international debate“, where advocates against the corporal punishment of children will take stock of how far the smacking debate has come since Sweden banned corporal punishment 30 years ago, becoming the first country to forbid all forms of violence against children, including at home.

The Council of Europe, which monitors States’ compliance with the European Convention, have recommended that all states should secure to everyone within their jurisdiction, including children, the right to be protected from torture and inhuman or degrading treatment or punishment (Article 3 ECHR), the right to liberty and security (Article 5), and the right to a fair trial (Article 6).

The Independent sums up the position in the UK, where smacking in most schools but not at home is banned:

Though we have a partial ban in place and are about to close an eccentric loophole in that law which allows private tutors to whack their pupils (“reasonably”) our right to cuff our own children is still protected. Sir Roger Singleton, the Government’s independent adviser on child safety, recently published a report – Physical Punishment: Improving Consistency and Protection – which essentially recommended that smacking should be banned everywhere except in the home, by parents and those in loco parentis.

Read more:

  • Council of Europe Integrated Strategy against Violence
  • Independent report by Sir Roger Singleton, Chief Adviser on the Safety of Children
  • Update 30/04/10 – Libby Brooks writing in The Guardian: “Only the Liberal Democrats have committed in their manifesto to incorporating the UN convention into British law, which is probably about as hopeless a daydream as proportional representation. But, in the meantime, we cannot rely on benign self-regulation by parents alone. Smacking is assault, however you dress it up. It brings with it all the guilt, shame and assumptions of weakness and power that come with any attack on another human.

Judges should consider parents’ interests under Article 8 of the Convention before granting care orders

EH v London Borough of Greenwich and AA and REA and RHA (through their guardian), A (children) [2010] EWCA Civ 344

Read judgment

This was an appeal against the decision of the judge at first instance granting the local authority a full care order and placement order in respect of the appellant mother’s children. One of the children had been admitted to hospital as a baby with a fracture injury that was diagnosed as being non-accidental, following which both children were immediately taken from their parents’ care and placed with their maternal grandmother.

A later fact finding hearing determined that the baby’s injury had probably been caused by her father and that the mother had failed to protect the baby, although the judge did find that the mother had very many good qualities and her parenting abilities, per se, were not in issue, and that apart from the fracture injury there was no evidence that the children had suffered any harm.

Continue reading